Introduction This post addresses the topical issue of Third-Party Funding (“TPF”) in relation to Nigeria-seated arbitrations, and posits in variance with recent work on the subject that there is no extant law prohibiting TPF in Nigeria-seated arbitrations. This post points out that there has been an apparent misapplication of the common law principles of champerty and…
A legal regime which asks the victim of a frivolous legal proceeding to subsidise the costs of the perpetrator is unjust and is bound to provide incentives for more frivolous proceedings. For a long time, Indian arbitration law had been providing such incentives for a party to make frivolous objections to the arbitration agreement or…
On 22 November 2018, the Belgian Ministry of Foreign Affairs, Foreign Trade and Development Cooperation hosted a High Level Event on the Reform of Investment Protection. Distinguished panellists from arbitral institutions, international organisations, academia, civil society, arbitration users and legal practitioners presented diverse views on the need for reform of the system of investor-State dispute…
In June 2018, the long awaited UAE Federal Arbitration Law (Law No. 6 of 2018) entered into force, repealing the arbitration specific provisions (“UAE Arbitration Chapter”) contained in the UAE Civil Procedure Code (Law No. 11 of 1992). Whilst it is fair to say that the new UAE Federal Arbitration Law failed overall to meet…
The Public Policy Exception as an Unruly Horse There is an ongoing quest for a uniform application of the New York Convention. However, the interpretation of the exceptions to enforcement still varies. Albeit applying the same provisions, national courts continue to adopt different approaches to the enforcement of foreign arbitral awards. This is particularly true…
This is the 1st part of the report highlighting the most significant arbitration-related decisions of the Swiss Federal Supreme Court (the “Supreme Court”) published in 2018. Consent to Arbitrate In two decisions, the Supreme Court dealt with the validity of an arbitration agreement under Swiss law. It set aside both awards – two of rather…
This is the 2nd part of the report highlighting the most significant arbitration-related decisions of the Swiss Federal Supreme Court (the “Supreme Court”) published in 2018. Jura Novit Arbiter In the decision 4A_525/2017 of 9 August 2018, published on 26 September 2018, the Supreme Court dealt with the principle of jura novit arbiter, controversial…
Foreign Direct Investment into Africa has increased from $10 billion in 19991)UNCTAD, World Investment Report (2000), p. 40. to $41,8 billion in 2017.2)UNCTAD, World Investment Report (2018), p. 38. Makhtar Diop, former World Bank Vice President for the Africa Region, pointed out that “Intra-African investment is also on the rise, creating a virtuous circle”.3)M. Diop,…
The Supreme Court of the Russian Federation recently ruled that initiation of a second arbitration from the same contract violates the principle of legal certainty which forms part of the Russian ordre public (Ruling of the Supreme Court of Russian Federation dated 27.09.2017 docket number N 310-ЭС17-5655, А54-3603/2016). The reasoning of the decision is comparable to the…
Over the last couple of decades, arbitration, its practical aspects, but also its very notion, have faced severe attacks from a variety of critics: politicians, members of civil society, users, etc. While arbitration practitioners are actively tackling many areas of reform, the majority of these denunciations appear, for the most part, biased and overly simplistic….
We often mislead ourselves into believing that, by arriving at a certain contract decision, we have carefully considered all available options, weighed up the pros and cons of each attribute dispassionately, and selected the most favourable outcome, i.e. the one which maximises our welfare in the transaction. Regretfully, however, we are seldom cognisant of the…
In May 2018, the Cairo Court of Appeals issued an intriguing judgment concerning the enforcement of an arbitral interim measure. In the words of the Court, the arbitral tribunal has issued a procedural order against Damietta International Ports (“DIP”) ordering the latter to refrain from suing the guarantor bank regarding the liquidation of a letter…
Last year was a busy one for arbitration practitioners in Australia and New Zealand, and 2019 looks set to be even busier. In 2018, both countries initiated a range of arbitration reforms, initiatives and negotiations which give insights into the likely general direction of travel for both countries in the coming year. This post focusses…
The year of 2018 has seen arbitration as a dispute resolution forum in the resource rich continent of Africa pendulum between boosting countries in the region as a seat of arbitration and reinforcing court sovereignty in disputes. The year began with optimism in the wake of the OHADA reforms. In late 2017, the Organization for…
Begin at the Beginning On November 28, Rapper Jay-Z filed a petition in Manhattan Supreme Court pertaining to an ongoing arbitration administered by the AAA-ICDR. He sought (i) a temporary restraining order to halt Iconix from pursuing claims in arbitration; (ii) a preliminary injunction staying arbitration for a period of ninety days for the parties…
On the 5th of December 2018, the stake of arbitration amidst the technological evolution was in the spotlight; Sciences Po Law School hosted the first conference of the Arbitration X Technology saga, organized by the Sciences Po Arbitration Society (SPAS), under the framework of the LL.M in Transnational Arbitration and Dispute Settlement (T.A.D.S). The former…
On 23 October, Gary Born participated in a Fireside Chat titled “How to Become a Star in International Arbitration in Five (Easy?) Steps, and is it Still Possible?”. The interview took place in Moscow and was conducted by Sergey Usoskin of Double Bridge Law, and Mikhail Kalinin of Norton Rose Fulbright. It was moderated by Alexandra…
The World Trade Organization (WTO) was born on January 1, 1995 and its Understanding on Rules and Procedures Governing the Settlement of Disputes (DSU) provides a binding means for WTO members to resolve disputes arising under WTO agreements. This post summarizes WTO DSU dispute settlement and considers, whether in light of recent developments, article 25…
In a marked departure from its usual closed-doors policy, the Swiss Federal Supreme Court (the “Supreme Court”) recently held public deliberations in two separate appeal proceedings concerning foreign investment arbitrations. In both cases, a public deliberation by all five judges of the first civil chamber was necessitated due to the lack of unanimity among the…
The endeavours of the ICC go beyond the definition of an arbitration institution; it is indeed one of the most important agents of cultural integration, incubator of diversity and best arbitration practices. 1)Stavros Brekoulakis, The Culture in International Arbitration: Integration or Fragmentation?, CBAr Conference, Salvador Bahia, 18 September 2018 A true manifestation of this is the…
A little under ten years ago Sir Rupert Jackson proposed significant reforms to reduce the costs of litigation in England and Wales. It is fair to say that while his reforms have received both praise and criticism over the past decade, they are largely considered to have been a success in curtailing the costs of…
Commensalism of IIL Critique While the popular criticism of investment arbitration provides fertile ground for the academic proposals for ISDS reform, the latter hardly shape the development of (investment) law and even less so, its popular perception. Reform proposals are usually firmly grounded in positive law, and as such they are inherently constrained. Alternatively, general…
The decision made in the case of Hardy Exploration & Production (India), Inc. v. Government of India, Ministry of Petroleum & Natural Gas (Civ. Action No. 16-140 (D.D.C. 7 June 2018)) (“Hardy case”) is yet another decision in a string of outcomes under the New York Convention proving that the repeated adagio “if it ain’t broken,…
December is the month when we slow down, enjoy the festive season and (the well-deserved) holidays. December is also the month of retrospection and of planning for the year to begin, always hoping to do better, and today we would like to do the same for the Kluwer Arbitration Blog. Last year, we were expecting…
